Secret Counterfeiting Treaty Public Must be Made Public, Global Organizations Say

More than 100 public interest organizations from around the world today called on officials from the countries negotiating Anti-Counterfeiting Trade Agreement (ACTA) — the United States, the European Union, Switzerland, Japan, South Korea, Canada, Mexico, Australia and New Zealand — to publish immediately the draft text of the agreement.

Secrecy around the treaty negotiation has fueled concerns that its terms will undermine vital consumer interests.

“Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited,” say the public interest groups in their letter.

Worsening the problem is the perception that industry lobbyists have access to the text and are influencing the negotiations. “The lack of transparency in negotiations of an agreement that will affect the fundamental rights of citizens of the world is fundamentally undemocratic. It is made worse by the public perception that lobbyists from the music, film, software, video games, luxury goods and pharmaceutical industries have had ready access to the ACTA text and pre-text discussion documents through long-standing communication channels.”

“Why in the world are trade negotiators keeping the treaty a secret?” asks Robert Weissman, director of Essential Action. “Are they worried about counterfeiters influencing the negotiations? What possible rationale is there for secrecy — other than to lock out the public? Intentionally or not, a treaty to prevent unauthorized copying may easily go too far, and undermine important consumer interests. That’s why it is so important that this deal be negotiated in the light of day.”

Essential Action is a public health and corporate accountability group located in Washington, DC.

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The list of signers and additional quotes from groups signing the letter is available on the continuatio of this post, or as downloadable rtf at:

We are writing to urge the negotiators of the Anti-Counterfeiting Trade Agreement (ACTA) to immediately publish the draft text of the agreement, as well as pre-draft discussion papers (especially for portions for which no draft text yet exists), before continuing further discussions over the treaty. We ask also that you publish the agenda for negotiating sessions and treaty-related meetings in advance of such meetings, and publish a list of participants in the negotiations.

There is no legitimate rationale to keep the treaty text secret, and manifold reasons for immediate publication.

The trade in products intended to deceive consumers as to who made them poses important but complicated public policy issues. An overbroad or poorly drafted international instrument on counterfeiting could have very harmful consequences. Based on news reports and published material from various business associations, we are deeply concerned about matters such as whether the treaty will:

+ Require Internet Service Providers to monitor all consumers’ Internet communications, terminate their customers’ Internet connections based on rights holders’ repeat allegation of copyright infringement, and divulge the identity of alleged copyright infringers possibly without judicial process, threatening Internet users’ due process and privacy rights; and potentially make ISPs liable for their end users’ alleged infringing activity;

+ Interfere with fair use of copyrighted materials;

+ Criminalize peer-to-peer file sharing;

+ Interfere with legitimate parallel trade in goods, including the resale of brand-name pharmaceutical products;

+ Impose liability on manufacturers of active pharmaceutical ingredients (APIs), if those APIs are used to make counterfeits — a liability system that may make API manufacturers reluctant to sell to legal generic drug makers, and thereby significantly damage the functioning of the legal generic pharmaceutical industry;

+ Improperly criminalize acts not done for commercial purpose and with no public health consequences; and

+ Improperly divert public resources into enforcement of private rights.

Because the text of the treaty and relevant discussion documents remain secret, the public has no way of assessing whether and to what extent these and related concerns are merited.

Equally, because the treaty text and relevant discussion documents remain secret, treaty negotiators are denied the insights and perspectives that public interest organizations and individuals could offer. Public review of the texts and a meaningful ability to comment would, among other benefits, help prevent unanticipated pernicious problems arising from the treaty. Such unforeseen outcomes are not unlikely, given the complexity of the issues involved.

The lack of transparency in negotiations of an agreement that will affect the fundamental rights of citizens of the world is fundamentally undemocratic. It is made worse by the public perception that lobbyists from the music, film, software, video games, luxury goods and pharmaceutical industries have had ready access to the ACTA text and pre-text discussion documents through long-standing communication channels.

The G8’s recent Declaration on the World Economy implored negotiators to conclude ACTA negotiations this year. The speed of the negotiations makes it imperative that relevant text and documents be made available to the citizens of the world immediately.

We look forward to your response, and to working with you toward resolution of our concerns.

Draft text at the World Health Organization, where resolutions are published in advance of consideration and treaty or treaty-like negotiations are handled openly, including this example of follow-on negotiations for the Framework Convention on Tobacco Control:

Kimberlee Weatherall, Lecturer, TC Beirne School of Law, The University of Queensland, and Board Member, Australian Digital Alliance
“It’s extraordinary that a treaty which potentially affects such a wide range of interests would be negotiated behind closed doors: there’s too much at stake. Secrecy is only increasing people’s fears, and the belief that the negotiations aren’t taking sufficient account of the public interest.”
Professor David Fewer, Canadian Internet Policy & Public Interest Clinic (CIPPIC), University of Ottawa, Faculty of Law
“We’re looking for the Canadian government to show leadership in introducing transparency and responsible consumer consultation to ACTA discussions.”

Professor Michael Geist, Canada Research Chair in Internet and e-commerce Law, University of Ottawa, Faculty of Law
“ACTA has raised concerns for millions of citizens around the world. The time has come to lift the veil of secrecy and ensure that the future negotiations occur in an open and transparent environment.”

Heeseob Nam, IP Left, Seoul, Korea
“ACTA is another name for “kicking away the ladder” with which the industrialised nations climbed to the top. During the debate of Patent Act of 1790, Richard Wells argued that Americans should not be deprived of the advantage of imitating any of the English invention. This argument prevailed in the U.S. House, and the importation of patents became prohibited. This policy objective was invigorated by discrimination against foreign inventors in the US, and the statute lasted for about 70 years after 1793.”

Gwen Hinze, International Policy Director, Electronic Frontier Foundation, San Francisco, CA, USA
“Despite its potentially harmful impact on consumers’ privacy and free expression, and on Internet innovation, the citizens that stand to be directly affected by ACTA’s provisions have been given almost no information about its contents. A leaked document includes new legal regimes to “encourage ISPs to cooperate with right holders”, criminal measures, and increased border search powers, all of which raise considerable concern for citizens’ civil liberties. Given the expedited timeframe in which it is being negotiated, citizens deserve to see the full text of ACTA now, so that they can evaluate its impact on their lives.”

James Love, Director, Knowledge Ecology International (KEI), Washington, DC, USA
“Counterfeiting, properly defined, is a serious problem. Why the top secret negotiating approach for this treaty? The USTR won’t even give us the agendas of the meetings or the names of the negotiators, or the proposed texts — stuff that is normally transparent. I think the answer is the bogus use of an emotive term, counterfeiting, to push an unbalanced IP enforcement agenda, without any attention to civil or consumer rights. Unfortunately, there is bipartisan support for this assault on openness and transparency. Little wonder most people don’t trust governments these days. Why should they?”

Sherwin Siy, Staff Attorney and Director of Global Knowledge Initiative, Public Knowledge, Washington, DC, USA
“It’s incredible that such a significant document on such vital issues can move forward when virtually nothing is known or shared about its actual contents. If we are going to have international agreements on matters so essential to the exchange of speech, information, and knowledge, these agreements cannot be made in secret.”